Limited Government and Free Market Views in Delaware

Archive for August, 2017

With the withdrawal of Aetna from Delaware’s Obamacare exchange, some consumers will face a health insurance monopoly. The benchmark silver plan for a 40-year old nonsmoker in Wilmington is projected to cost 49% more in 2018 than 2017, and to be the highest cost such plan in the US at $631/month (Kaiser Family Foundation). While those who receive subsidies are protected from this increase (between 80-90% of Obamacare exchange enrollees), those making over 400% ($47,550 for an individual in 2017) of the federal poverty level are not.

Why can’t consumers buy health insurance policies from insurers in other states where premiums might be lower or coverage better? The federal McCarran-Ferguson Act (1945) granted states the right to regulate health insurance plans within their borders, which resulted in a patchwork of 50 sets of regulations and highly concentrated health insurance markets within each state.[1] Market share of the dominant insurer (by state) averages 57% (individual policies), 58% (small group policies), 59% (large group policies); in Delaware these shares are 92%, 75% and 71% (2016, Kaiser Family Foundation).

Are these premiums high because of market power? Can they be reduced by encouraging out-of-state insurers to sell policies in Delaware? As we discuss below, the short answer is maybe.

Can Delaware Allow Cross Border Sales of Insurance?

Since states are the regulators of health insurance inside their borders, Delaware could already unilaterally allow insurers in other states to sell plans in the state. Eighteen states considered laws to allow such practices prior to ACA passage. Of those, only 2 states signed the bill into law: Rhode Island (SB 2286, 2008) and Wyoming (HB 128, 2010). Post-ACA, 13 states have considered such laws, with only 3 states passing them: Georgia (HB 47, 2011), Kentucky (HB 265, 2012), and Maine (HB 979 2011).

Some have suggested that states, like Delaware, may be too small to support more than one or two insurers without combining with other states’ markets. For this reason Section 1333 of the ACA permits states to form health care choice interstate compacts to allow insurers to sell ACA-compliant policies in any participating state.[2] No ACA compacts have been formed nor does there appear to be much interest by any state in doing so. Since many insurers already have a multi-state presence, such as Delaware’s dominant insurer Highmark Blue Cross Blue Shield, this could be less of a problem than the designers of the ACA imagined.

A nine-state health care compact was formed outside of the purview of the ACA (KS, AL, SC, UT, GA, OK, MO, TX, IN). The objective is to obtain federal funds as block grants and to take over primary responsibility for regulating the health care system, rather than being governed by ACA, Medicaid and Medicare regulations. Interstate compacts can be formed without Congressional approval although their legal status is ambiguous.[3] In this case since federal funds are involved, it seems almost certain that formal Congressional approval is needed. However, efforts to get Congressional approval have languished, although this could change.[4]

Clearly there already exist several avenues for states to allow insurers to sell policies across state borders. But there has been little effort to do so. Why?

Experiences with Cross-Border Sales

In none of the six states that permit cross-border sales of policies has an out-of-state insurer entered the market. Insurers cite the difficulty and high cost of establishing a provider network as the major reason for this, far more important than a state’s regulatory climate or benefit mandates. In fact, one insurer described Maine’s provider network as ‘locked up’ and one in which ‘[we] can’t make a deal [on reimbursement]’.[5] Moreover, they claim that the main reason for interstate differences in premiums is interstate differences in provider prices. An Institute of Medicine study in 2013 indicated that 70% of the differential in commercial insurance costs was due to differentials in provider prices.

Thus, the market power of dominant insurers may not be the only reason for interstate premium differentials and may not even be the main reason. Instead, it appears that two highly concentrated industries, health insurers and healthcare providers, negotiate with each other and divide the revenue stream from policyholders between them. Potentially they could collude to keep the revenue stream as high as possible. Less pejoratively, they could work less diligently to reduce costs, hence policy premiums.

What Should Delaware Do?

Competition should be improved simultaneously in both health insurance and healthcare. The reason is illustrated by Ho and Lee in a 2013 NBER study where they demonstrate that introducing more competition in the insurer market potentially increases the bargaining power of providers, which would offset the effect of competition on insurer premiums. Liberalizing one industry and not the other merely changes the bargaining power and the amount of the revenue stream directed to each, but does not reduce costs for consumers.

Other states have implemented pro-competition measures for the provider industry, such as elimination of certificate-of-need laws and price transparency (see previous columns). Regrettably, the ACA created incentives for additional provider consolidation via ‘accountable care organizations’ (a type of HMO). These should not be allowed to violate anti-trust laws. The FTC has been stepping up enforcement, unfortunately states have not. Delaware’s state government can do more on these measures.

One of the few mechanisms that is reducing healthcare costs is the spread of health savings accounts/high deductible health plans, which cause both patients and providers to be more price/cost-sensitive. HSA-compatible plans had been available in Obamacare exchanges through 2017, however a regulation passed in March 2016 may eliminate them in 2018.[6] Delaware should do whatever it can to make HSA plans accessible to those who want them.

Some states have reduced the ability of insurers and providers to collude and to shut out potential competitors, most commonly by banning the most-favored-nation (MFN) clause, also referred to as a “most favored customer clause,” “prudent buyer clause,” or “nondiscrimination clause”. These ensure that the insurer will receive the best price from the provider.[7] Healthcare providers then cannot offer a better price to another (out-of-state) insurer, thus denying a new insurer the incentive to enter the market. A 2012 DOJ study shows these clauses result in higher prices across the board.[8] The DOJ has prosecuted on this basis and 18 states have enacted the ban (AK, CT, GA, ID, IN, KY, MD, MA, ME, MI, MN, NC, NH, NJ, ND, OH, RI, VT, WV). At a minimum, Delaware could follow the lead of these states. Delaware could also ban anti-steering clauses. In these clauses, an insurer is restricted from steering consumers to competitively priced providers (e.g. out-of-state providers), thus reducing local providers’ incentives to be competitive. Insurer guarantees that a provider will not be excluded from the network create the same problem.

Conclusions

The goal of increasing competition in health insurance by allowing cross-border sales of policies is a good one, but is unlikely to reduce premium prices much unless there is also price competition in the provider network. Additionally, the difficulty and cost of building a local provider network for potential entrants must be reduced as much as possible. Several measures are outlined in this column. Delaware is suffering some of the highest insurance premiums in the country, yet is lagging in investigating and implementing these measures. This has a high cost for its citizens, not just monetarily, but in their health.

-by Stacie Beck, Associate Professor of Economics, University of Delaware

& CRI Advisory Council Member and John Libert, CRI Summer Research Intern.

[1] Large employers who self-insure are exempt from these state regulations.

[2] Compacts require the approval of the US Department of Health and Human Services. HHS has been slow to issue regulations for this, but there has not been any reason to hurry, given states’ disinterest.

[5] Corlette, et al Selling Health Insurance across State Lines Georgetown University Health Policy Institute, 2012, p.11. See also a recent summary by Jenson and Riley “Selling Health Insurance across State Lines” National Academy for State Health Policy, February 2017.

Nine northeastern states from Maryland to Maine sell power plant carbon dioxide emission allowances in quarterly auctions, reducing the number of allowances over time, and the allowance cost is added to electric bills. A new study from the Caesar Rodney Institute titled “A Review of the Regional Greenhouse Gas Initiative”, finds there were no added emissions reductions, or associated health benefits from the cap and trade program. Spending of program revenue on energy efficiency, wind and solar power, and low income fuel assistance had minimal impact.

The allowance costs added to already high regional electric bills, and the combined pricing impact resulted in a 13 percent drop in goods production and a 35 percent drop in the production of energy intensive goods. Comparison states increased goods production by 15 percent. The regional program shifted jobs to other states. A national emissions tax would shift jobs to other countries. A better policy to reduce emissions is to eliminate carbon dioxide emission taxes and regulation, and encourage innovation.

The nearly decade-old Regional Greenhouse Gas Initiative (RGGI) was always meant to be a model for a national program to reduce power plant carbon dioxide emissions. The EPA explicitly cited it in this fashion in its now-stayed Clean Power Plan. The program is often called a “cap and trade” program, but its effect is the same as a direct tax or fee on emissions. That is because RGGI allowance costs are passed on from electric generators to electric distribution companies to electric consumers.

Most emissions reductions track lower generation from coal-fired power plants. Coal’s decline began with dramatically falling natural gas prices beginning in 2009, and was accelerated by restrictive EPA regulations beginning in 2012. Many older, smaller power plants were shut down rather than invest in expensive filtration equipment that would be needed to meet new standards. Lower natural gas prices indirectly influenced the decisions to close down the coal-fired generation. We can parse the relative impact of these two forces and find, both nationally and in the RGGI states, EPA regulations impacted 28% of coal’s decline with 72% directly due to lower natural gas prices.

RGGI revenue expenditures had a marginal impact. Between 2007 and 2015 low income utility bill assistance from RGGI revenue added only about $5 a year net to an existing federal program. Grants for wind and solar power only accounted for about 1% of all the wind and solar power added by the RGGI states. Over the same time period non-RGGI comparison states saw a 20% greater increase in energy efficiency.

New power plant construction in RGGI states didn’t keep up with closings leading to a doubling of electricity imports to 17% between 2007 and 2015. Importing more power results in effectively exporting carbon dioxide emissions accounting for almost a fifth of the RGGI state emissions reductions. A similar national loss of power plants could lead to electricity outages.

The United States has already reduced emissions more than the rest of the world since 2005 through innovative natural gas drilling techniques. Emissions are down 12 percent in 2015 from the 2005 base year, about twice the rate of other developed countries, while emissions are up 45 percent in the rest of the developing world according to the European Commission in their report “CO2 time series 1990 – 2015 per region/country”. We have many other opportunities to invest in innovation, such as, improved solar photovoltaic cells, more efficient batteries, small modular nuclear reactors, or nascent technologies that use fossil fuels without emitting carbon dioxide.

So, RGGI states exported carbon dioxide emissions and jobs. It is one thing to export well-paying manufacturing jobs from one state with poor energy policies to another with better policies. There is quite a more profound impact on the U.S. economy from exporting those jobs to countries with even worse emissions. That is what a national cap and trade, or tax policy on carbon dioxide emissions would do. The regional example has failed to show emission reductions, and there is little to show for several billion dollars in expenditures of RGGI tax revenue. What do you know, the RGGI experiment did work as a national example of what not to do! The RGGI states are thinking about extending the program for ten more years. Perhaps they should kill it instead.

It’s worth noting that to take our next step forward we actually have to go “back to the future”, back to 1995 and the inception of the “Bold” plan. When we combine that concept with some of the more recent specific systemic change recommendations (like the Memorandum of Understanding for priority schools increasing local control), our path forward becomes clearer. Local control with appropriately prepared CEOs (formerly known as principals) working with teachers and parents is essential for any significant improvement in education. The Brookings Institution said that, to improve education, the power cords from school boards and bureaucracies to the school buildings had to be cut. This isn’t because of incompetent administrators but because the current system cannot get the job done. We no longer use horses to travel and transport goods, not because there is anything wrong with horses but because compared to the other various means of available transportation we would all be better off if the horses were put out to pasture.

If we don’t take the time and effort to first, fundamentally change the education system, then any seemingly beneficial attempts to improve things can have disastrous results. Consider the current discussion about reducing the number of school districts in the state. New York City and Los Angeles have only one school district each while the much smaller student population of the state of Delaware has nineteen.

Several elected officials have opposed the reduction of the number of school districts because of the significant increase in operating expenses they say would result due to the “leveling up” effect of teacher salary scales. To support their contention, the officials refer to a 2002 study conducted in response to House Resolution 54. That study only considered Kent and Sussex Counties and the conclusion was that consolidating into only one district in each county would increase operational expenses by 7.2 million dollars! How could that be?

Without the “Bold” power shift of placing operational decision making in the hands of local building professionals, many functions would continue to be duplicated (and triplicated) at the district and state levels along with excess administration and support personnel. The study used the existing state funding formula which was based on student enrollment. The result was that, since student enrollment remained the same, literally everyone who was displaced by reducing the number of districts to one in each county was rehired by the single but much larger county districts. There were no district cost reductions to offset the salary scale increases! Reduced building operation expenses were ignored as were the possibilities of renting or selling office space or facilities. Some legislators today still rely on the flawed conclusions of that study.

Our action plan over the next three to five years should have the goal of improving all public schools. CEOs (formerly principals) will complete a professional administrative leadership program (a manual, The Art of Administration, has already been prepared) along with a mentoring component and an emphasis on developing a strong school culture. As schools qualify for local control, they will have autonomy from any District or Delaware Department of Education requirements not mandated by state or federal law. As more schools qualify for local operational control, the administrative responsibilities of district school boards and bureaucracies will be greatly diminished while parental contact with education decision makers is increased. This now prepares the foundation for district reductions.

The expanded responsibilities of the CEOs include: 1) The authority to hire and dismiss all staff; 2) All programming inputs including but not limited to school calendar, school schedule, curriculum, instructional practices and methodology, program emphasis, textbooks and technology; 3) Marketing, long-range planning and continuous improvement efforts; 4) Support services including transportation, food, and maintenance; 5) Budget preparation, implementation, and expenditure control. Surplus operating funds will be retained by the school for future use.

District school boards will have the following responsibilities relative to the operation of the local schools: 1) Hiring and performance evaluations of CEOs; 2) Approval of proposed annual budgets and major capital proposals; 3) Review of appeals of CEO decisions; 4) Operational support in areas such as legal, financial, personnel, facilities, marketing, etc. as requested by CEOs; 5) Facilitation of intra and inter district meetings of CEOs as requested by them.

It’s time to stop rearranging the deck chairs on the Titanic and settling for incremental improvements. It’s time to address the gash below the water line. It’s time to be “Bold”.

When the conversation turns to improving student learning, most people focus on curriculum, technology, evaluations, methodology, etc. These and other items are critical to the teaching portion of student learning. They certainly affect the outcomes of a school’s efforts. But the 1995 systemic change plan (supported by the Governor, the Delaware Department of Education, and the business community) was unique and its interest was completely different. Teaching focuses on “what” has to be done in the school building. Education focuses on “how” the system will operate in order to get the “learning job” done.

Charter schools were not to be the sole answer to Delaware’s educational woes. They were to be the mechanism for changing the existing school system which was perceived as an economic liability for the state. The purpose of charter schools as stated in the law itself was to “…improve public education overall…” It was to accomplish this goal by using a few charter schools to pilot the local control concept along with exploring new ways to improve student learning. Using the charter school experience as a model, all traditional public schools were to be changed. Implementing the local control concept meant that parents were closer than ever to the decision makers for their children’s education. It meant that schools would be customized and not standardized.

To appreciate the seriousness of the local control issue, consider the overview of the charter school legislation prepared in 1995 by Michael Ferguson, State Superintendent of Public Schools and co-author of the Charter School Law. He clearly described the transfer of decision-making power away from school boards and district bureaucracies and placing it with the local schools. Excerpts from that document include: “Reliance on bureaucratic decisions would be a thing of the past.” “…empower local communities further with additional decision-making authority.” “…try new approaches to learning without bureaucratic restrictions.” “…empower local communities to try new, unique solutions to problems that are facing their own schools.” “Teachers…can minimize the bureaucracies that perhaps once stifled their creativity.” “Parents and teachers are less restricted by decisions made at a district or state level, so they can focus their teaching methods, curriculum, and other policies around the needs of their particular students.” In describing this shift of power to the state’s first charter school president, Ferguson said, “Except for federal laws and laws regarding health and safety you are free to do whatever you want but you have to be willing to accept responsibility for your actions.”

What would this “Bold” change look like? Most current principals will require a transition period as cadres of building principals are prepared, mentored, and converted from traditional principals to CEOs (Chief Education Officers). As individual schools wait for the conversion process they will operate as they currently do. This will permit the transition to be as seamless as possible and provide for controlled growth. The Caesar Rodney Institute is working on a draft piece of legislation to define the new responsibilities of the CEOs and the supportive and oversight responsibilities of district boards. It is modeled after the Memorandum of Understanding designed by the state and intended to significantly improve the state’s lowest performing schools through local control. It should be noted that it contains the statement that, “The School shall have autonomy from any District or Delaware Department of Education requirements not mandated by state or federal law.” As suggested by the US Department of Education, evaluations must be based on performance and not compliance.

The benefit of the “Bold” shift surfaced at the 2014 Rodel Foundation April Education Event. Andreas Scheleicher, a member of Rodel’s International Advisory Group, presented data to show that a school’s performance would be enhanced by giving the school greater autonomy coupled with involving teachers in the decision-making process (distributive leadership). Any other significant changes to the existing bureaucratic school system must be preceded by a “Bold” power shift as the fundamental “first step”. Discussions on the topic of reducing the number of school districts is a good example of the horrible erroneous conclusions that arise when this “first step” systemic change is ignored. New York City and Los Angeles have one school district each while the much smaller Delaware has nineteen. Should that number be reduced?

The importance of this first “Bold” step for other educational improvements will be covered when we consider the discussion on district reductions. We will conclude with where we go from here in part 3, the next (first) step.

You don’t have to have school-age children or grandchildren to have an interest in Delaware’s public schools. If you live or work in Delaware you have a great stake in the changes to the state’s public school system because education reform is all about Delaware’s economy. It’s about attracting business and retaining business. It’s about property values and taxes. It’s about reducing crime rates, creating jobs, and population shifts (do you know anyone who moved to get into a different school district or, perhaps, moved across the state line?)

Let’s be clear about the difference between teaching and education. Teaching is a profession with a special relationship between teachers and students. This is similar to the legal and medical professions with their relationships between attorneys and clients, as well as, between doctors and patients. Education, on the other hand, is a business like a law firm or a hospital. It is the structure or system within which our schools operate to benefit our children and our communities. It provides support and oversight for the teaching professionals who were hired to use their knowledge and talents to “get the teaching job done” and who are situated close to parents in the school buildings. If anyone says to you “It’s all about the kids”, know that they are talking about teaching in the local schools, not education.

As a basic principle of business, is it better to have centralized, distant, decision makers calling the “operational shots” or would it be more productive and efficient to have decisions made at a local level by professionally prepared individuals who actually deal with situations daily? For public education that question was answered in 1995 when the decision was made to move toward a more locally-controlled educational system. It was a decision supported by the Governor, Delaware’s Department of Public Instruction (now Department of Education), and a business consortium (DuPont, Bell Atlantic, Hercules, Delmarva Power, Zeneca, and Christiana Care). The existing public school “system” was seen as a liability. The time for “tweaking” was over and the time for “Bold” action had arrived.

Many people, organizations, and other efforts (Rodel Foundation, Race to the Top, Vision 2025, etc.) have been working earnestly to improve student performance and we are seeing “upticks” in scores but is that enough? USA TODAY on 7/18/17 ran a front page article on rising graduation rates. The nation has hit a new high of 83% while, at the same time, SAT scores have dropped over 20 points. The article concludes that students haven’t learned more but, rather, high school grades have been inflated.

There’s a new way of looking at an old problem. Delaware’s public school system has been operating under a “horse and buggy” model of administration while a new system of local control and accountability was on the horizon. A few charter schools were to pilot the new system and the lessons learned were to be used to change the traditional public schools. Large numbers of charter schools were not the intended answer to Delaware’s education problems. In the August 2015 issue of Delaware Today magazine it was stated that, “Charters proliferated in a way never intended or anticipated.” A few charters were to be the change models for all traditional public schools. Dr. Gary Miron, Executive Director of Western Michigan University’s Evaluation Center, conducted a three-year study of Delaware’s charter schools (2004 to 2007). He was quoted by the Brookings Institution as saying, “Charter schools weren’t meant to duplicate the traditional schools. They were going to be a lever for change…”

Why didn’t Delaware’s outdated education system change? Well, everyone involved in the change effort was no longer around. The Governor became our Senator, the State Superintendent who co-authored the Charter School Law passed away, and the consortium businesses were significantly transformed. All six CEOs left their positions and several of the companies experienced major changes. Bell Atlantic became Verizon, Hercules was taken over by Ashland, and Zeneca merged with Astra. The change agent (charter schools) was taken over by the very system it was supposed to change!

More specifics of the proposed reform effort will be presented in Part 2, the Bold Plan.